May 4, 2012 / Law Alert

Employment law perspectives: EEOC new guidance on using arrests and convictions in employment decisions

On April 25, 2012, the Equal Opportunity Commission issued its updated and comprehensive 52-page Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964, as amended, 52 U.S.C. § 2000e et seq. The EEOC acknowledges that an individual with a criminal record is not a protected class under Title VII. But liability may exist for an employer where reliance on a criminal background check in an employment decision has a negative impact on an applicant or employee in a protected category under Title VII. The Guidance is issued as part of the EEOC’s efforts to eliminate unlawful discrimination in employment screening, for hiring or retention, by entities covered by Title VII, including private employers as well as federal, state and local governments.

The Guidance reaffirms the standard for analyzing a criminal record in the employment decision process as set forth in Green v. Missouri Pacific Railroad, 549 F.2d 1158 (8th Cir. 1977). Employers should still consider the nature of the crime, the time elapsed and the nature of the job, when determining if the individual should be excluded from the job. The EEOC Guidance expands that analysis and it advocates that the employer should additionally engage in an “individualized assessment” before the employment decision to exclude is final.

The EEOC explains that the individualized assessment requires notifying the applicant of the situation and allowing him or her to demonstrate why they should not be excluded from the job. The employer should consider several factors in such assessments including the circumstances of the conduct, the number of convictions, the similarity of employment pre-conviction, the employment history before and after conviction, any rehabilitation and references. While the individualized assessment is not a mandatory requirement, such a practice is less likely to violate Title VII.

In light of this new Guidance, employers should review their policies and practices for using negative criminal history in the employment decision process and implement the best practices identified in the Guidance. Employers should also train and inform managers and hiring decision makers on their updated procedures in order to ensure that any criminal background check policy is implemented in compliance with Title VII.